US Waiver – Entering the US with a Criminal Record
If you have been refused entry into the United States or have a criminal record, you most likely need a US Waiver to enter the country.
Being refused entry into the U.S. can have major career and life implications, and it is important to be aware of the current regulations to know if your past conduct will lead to a finding of criminal inadmissibility.
Do I need a US Waiver if I have a pardon?
A foreign pardon is ineffective for US immigration purposes. As such, a US Waiver would still be required.
Do I need a US Waiver if I was not Convicted?
Generally, for there to be a finding of criminal inadmissibility, a conviction is required; however, in some circumstances, a person can be denied entry into the United States for simply admitting to the essential elements of a crime.
A conviction for immigration purposes means a “formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”
Denial of Entry into US
There are two main categories of conduct that will lead to a foreign national being denied entry into the United States.
- Crimes of Moral Turpitude: There is no exhaustive list of which crimes are crimes of moral turpitude but rather a vague definition of the term and a complex multi-step analysis to determine if a crime is morally turpitudinous. Generally, the essential elements of a crime of moral turpitude are specific intent and reprehensible conduct. Examples of crimes that have been deemed to be a basis for denial into the country include, murder, voluntary manslaughter, kidnapping, robbery, aggravated assault, copyright infringement, theft, and sexual offence crimes. Conspiracy, attempt, or bring an accessory involves moral turpitude if the underlying offence involves moral turpitude. Aggravated felonies are usually crimes of moral turpitude.
- Controlled Substance Offences: The controlled substance offences that can lead to a finding of inadmissibility include a broad array of drug crimes. In addition, if a border officer has a reason to believe that the person seeking entry is an illicit drug trafficker, then the person will be found inadmissible – no conviction or admission is needed for an officer to have such a “reason to believe.” Marijuana remains a Schedule I controlled substance. Therefore, engaging in marijuana related activities, even if legal where they occurred, could be a basis for criminal admissibility.
Exceptions to Inadmissibility for Crimes of Moral Turpitude
The bar on entry to anyone who committed a crime of moral turpitude does not apply in limited circumstances. For example, the foreign national may be allowed entry into the US without a US Waiver if the crime the foreign national committed occurred when the foreign national was under 18 years of age, or if the maximum penalty possible for the crime of which the foreign national was convicted did not exceed imprisonment for one year and the foreign national was not sentenced to a term of imprisonment in excess of 6 months. However, if a foreign national is deemed inadmissible and none of the relevant exceptions apply, a US Waiver would be needed to ensure that the foreign national could travel to the United States.
US Waiver for DUI
A DUI (driving under the influence) may be grounds for denying entry into the US. If the applicant has an alcohol disorder and a record of criminal arrests for alcohol related offences, then the applicant may be deemed inadmissible. However, a single DUI conviction (with no aggravated circumstances) is typically not grounds to deny entry into the US.
Looking for help getting a US Waiver?
Silver Immigration can guide you through the process of entering the US with a criminal record. Our team will help you understand how long it will take to get a US Waiver and assist you throughout the process of securing a US Waiver. Call us today at +1 (888) 799-4769 or book a free consultation with an immigration lawyer here.